PRIA, Government Policy, Made Personal

Summary

A government authority may get a person’s bank or financial records under section 3402(2) by using an administrative subpoena or summons only if three things happen. First, there must be reason to believe the records are connected to a real law enforcement investigation. Second, the customer must be given or mailed a copy of the subpoena or summons on or before the day the bank is served, and that copy must include a written notice saying the request is made under the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 et seq.) and explaining the investigation in enough detail for the customer to understand it. Third, either 10 days after the notice was served or 14 days after it was mailed must pass with no sworn motion to block the request filed in court, or the challenge process in section 3410 must have been followed. The required notice must tell the customer how to object: file a sworn statement and motion in a U.S. district court, send a copy to the government authority, be ready to appear in court, and that they may hire a lawyer. If the customer does not follow those steps within the time limits, the records will be released and may be shared with other government authorities, who must notify the customer after any transfer.

Title 12, §3405

Banks and Banking, Source: USLM XML via OLRC

A Government authority may obtain financial records under section 3402(2) of this title pursuant to an administrative subpena or summons otherwise authorized by law only if—

(1)there is reason to believe that the records sought are relevant to a legitimate law enforcement inquiry;

(2)a copy of the subpena or summons has been served upon the customer or mailed to his last known address on or before the date on which the subpena or summons was served on the financial institution together with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry: “Records or information concerning your transactions held by the financial institution named in the attached subpena or summons are being sought by this (agency or department) in accordance with the Right to Financial Privacy Act of 1978 [12 U.S.C. 3401 et seq.] for the following purpose: If you desire that such records or information not be made available, you must: “1. Fill out the accompanying motion paper and sworn statement or write one of your own, stating that you are the customer whose records are being requested by the Government and either giving the reasons you believe that the records are not relevant to the legitimate law enforcement inquiry stated in this notice or any other legal basis for objecting to the release of the records. “2. File the motion and statement by mailing or delivering them to the clerk of any one of the following United States district courts: . “3. Serve the Government authority requesting the records by mailing or delivering a copy of your motion and statement to . “4. Be prepared to come to court and present your position in further detail. “5. You do not need to have a lawyer, although you may wish to employ one to represent you and protect your rights. If you do not follow the above procedures, upon the expiration of ten days from the date of service or fourteen days from the date of mailing of this notice, the records or information requested therein will be made available. These records may be transferred to other Government authorities for legitimate law enforcement inquiries, in which event you will be notified after the transfer.”; and

(3)ten days have expired from the date of service of the notice or fourteen days have expired from the date of mailing the notice to the customer and within such time period the customer has not filed a sworn statement and motion to quash in an appropriate court, or the customer challenge provisions of section 3410 of this title have been complied with.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Right to Financial Privacy Act of 1978, referred to in par. (2), is title XI of Pub. L. 95–630, Nov. 10, 1978, 92 Stat. 3697, which is classified generally to this chapter (§ 3401 et seq.). For complete classification of this Act to the Code, see

Short Title

note set out under section 3401 of this title and Tables.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective upon the expiration of 120 days after Nov. 10, 1978, see section 2101 of Pub. L. 95–630, set out as a note under section 375b of this title.

§3405 Administrative Subpena and Summons